Boontheing (Migration)

[2020] AATA 2154

Boontheing (Migration) [2020] AATA 2154 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nutnicha Boontheing

CASE NUMBER:  1800248

HOME AFFAIRS REFERENCE(S):          BCC2017/3959578

MEMBER:Elizabeth Tueno

DATE:16 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 March 2020 at 5:06pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant as a student – applicant completed multiple courses – applicant studying in Australia over 9 years – family ties to home country – maintaining ongoing residence in Australia – courses below her Thai university accomplishments – prospective employment in Thailand – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 October 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate formed the opinion that the applicant was using the temporary student visa as a means of maintaining residence in Australia.

4. The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.  The applicant was assisted in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. In addition to the oral evidence given at the hearing, the Tribunal has had regard to the Department’s file as well as documentation provided by the applicant including:

    ·    A letter from the applicant to “whom it may concern” dated 24 January 2020 (“GTE statement”)

    ·    Confirmation of enrolment in various past and present courses

    ·    Other academic documents

    ·    A translated document relating to the applicant’s sister’s admission hospital  in 2019

    ·    A letter from the Royal Thai Armed Forces dated 20 October 2017 relating to the applicant’s Uncle

    ·    Confirmation of return flights from Australia to Thailand and back in 2017 and 2019

11. The applicant is a 39 year old Thai national.  She arrived in Australia on 25 May 2011 on a student visa.  Since then, she has been enrolled and completed a number of courses including:

    ·Various English language courses

    ·Certificate III in Business

    ·Diploma of Management

    ·Certificate IV in Accounting

    ·Diploma of Accounting

    ·Advanced Diploma of Accounting

12. At the time the applicant lodged her application for a further student visa, she was enrolled to undertake the following courses:

    ·Certificate IV in Marketing and Communication

    ·Diploma of Marketing and Communication

    ·Advanced Diploma of Marketing and Communication

13. She has, since the Delegate’s decision, completed the Certificate IV and Diploma of Marketing and Communication.  She is currently completing the Advanced Diploma of Marketing and Communication course.

    CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY

14. The applicant stated in evidence at the hearing that she has previously completed a Bachelor of Political Science in her home country of Thailand.  She did not provide a reason why she is unable to pursue marketing and communication courses in her home country.  Taking into account her previous studies in her home country, the Tribunal is not satisfied that the applicant has sound reasons for not studying in her home country.

15. As to her personal ties to her home country, the applicant stated that her family lives in Thailand and she is in contact with them by telephone two or three times per week.  She has no family in Australia.  She has returned to Thailand many times, at least once a year.  She provided proof of purchasing return flights between Australia and Thailand in 2017 and 2019, however she did not provide such evidence for the remainder of her time in Australia.  She stated she lost these tickets.  On average, she stated she would spend at least 5 weeks in Thailand every time she returned. 

16. She gave details of her sister’s health issues.  She said her sister suffers from depression and had attempted suicide once.  She had been in hospital for this however she is currently in a stable condition.  She sees her doctor once every two weeks.  She provided a letter from her sister’s doctor dated 14 August 2019, which confirms she was treated in a psychiatric hospital in 2019.

17. In her GTE statement, the applicant wrote, “during my time in Australia, I still keep in contact with my family back home in Thailand.  I went back to Thailand many times… During this time, my sister is the one who looks after my parents in my absence.  I hope to go back and look after them once I have done my study.  My sister is also not well, she has anxiety and depression.  Hence, it is important that I go back to Thailand and look after my parents, just like any normal Thai people do.  It is our culture and custom that we looking [sic] after our elderly parents”.

18. The Tribunal accepts that the applicant has personal ties to her home country, that being her family.  However, when considering the above statement from the applicant and the length of time she has been in the Australia, concerns are raised about the genuine intention of the applicant.  She has now been in Australia for nearly 9 years.  The Tribunal considers if the applicant truly did hold such concerns about her sister’s ability to care for their parents, she would have already returned to Thailand rather than remaining in Australia to continue studying.  The Advanced Diploma of Marketing and Communication does not end until May 2021, which means she will have spent a total of 10 years in Australia on temporary visas.  Taking these matters into account, the Tribunal does not find that the applicant’s family represents significant ties.  She has demonstrated that she can live overseas for nearly 9 years whilst maintaining these family ties. 

19. The applicant stated that she has no assets in Thailand.  Her assets in Australia are limited to a car valued at approximately $2,000.  She stated that she has never worked in Australia and is supported for both tuition fees and living expenses by her Uncle.  However, she then stated that she does in fact work and has done so since arriving in Australia in 2011.  She works as a cleaner working casually and earns between $300 to $400 per week.

20. She provided a letter from the Thai Armed Forces which confirms that her Uncle receives a monthly pension of 93,090 baht.  This is approximately AUS $4,732 per month.  Prior to coming to Australia, the applicant worked at a Bank for 6 years.  She said she has been offered a job at this same bank when she returns to Thailand, although she provided no objective evidence of this aside from her assertions in her oral evidence.  She said that she would expect to start on around 40,000 to 50,000 baht per month plus commission. 

21. The Tribunal considers that the applicant’s economic circumstances as described above not a strong incentive to return home.  She owns no assets in Thailand and has provided no objective evidence about the job offer she claims she has received.  In Australia, she is financially supported and earns a wage on top of this.  The Tribunal considers that at present, the applicant’s economic circumstances are a significant incentive not to return home.

22. She stated in her evidence that she has no military service commitment in Thailand and that there is no political or civil unrest in Thailand.  The Tribunal takes this into account and makes no finding that these matters would prevent the applicant from returning to her home country.

    POTENTIAL CIRCUMSTANCES IN AUSTRALIA

23. As noted above, the applicant stated that she owns a car in Australia valued at approximately $2,000.  While initially she stated she has never worked in Australia, she then clarified this to state that she has in fact worked in Australia since 2011 as a cleaner working casually.  She earns $300 to $400 per week.  She is supported for both tuition fees and living expenses by her Uncle who is on a generous pension having served in the Royal Thai Armed Forces. 

24. She confirmed that she is not in a relationship and has not been in one since arriving in 2011.  She said she shares an apartment with 4 friends and when not working or studying spends her time reading books and exercising. 

25. When considering the above matters alongside the type and number of courses she has studied since arriving in Australia, the Tribunal has concerns the applicant is using the student visa program to maintain ongoing residence and to circumvent the intentions of the migration program.  The applicant has a history of undertaking studies at the VET level of relatively short duration.  Her courses are all of a similar nature in that she has studied, business, accounting and marketing and communication.  Furthermore, the university degree she obtained in her home country was at a higher level than the study at the vocational level which she has been studying at since 2011.  It is of concern that the applicant was already a university graduate before coming to Australia and has chosen to study over many years at a level below her university accomplishments.

    VALUE OF THE COURSE

26. As noted above, the Tribunal does not consider the applicant completed a Bachelor degree in Political Science in her home country, which was at a higher level of the study the vocational level which she has been studying for the last nearly 9 years since 2011.  The Tribunal is concerned that the applicant was already a university graduate before coming to Australia and has chosen to study over many years at a level below her university accomplishments.  Accordingly, the Tribunal is of the view that the Advanced Diploma of Marketing and Communication is not consistent with her level of education.

27. The applicant stated that prior to coming to Australia she worked at a bank for 6 years before quitting in 2011 to come to Australia.  She worked in administration working with the bank’s customer database.  She said that she wants to return to Thailand after completing the Advanced Diploma of Marketing and Communication course as marketing is “booming” in Thailand and finance is also doing well.  She said she wants to work in marketing and that she hopes to return to the same bank she worked at previously but in a marketing role.  She later said in the hearing that she has spoken to the Bank where she previously worked about returning there.  She said they are willing to accept her in a marketing role.  However, it is noted that there is no objective evidence of this job offer.  It is difficult to accept that a bank would verbally offer a job in a specific role starting well into the future, in fact well over a year into the future. 

28. Furthermore, there was no evidence given by the applicant that she requires to complete the Advanced Diploma of Marketing and Communication course to secure this role, or to improve her employment prospects elsewhere in her home country.  Having already completed a Certificate IV and Diploma in Marketing and Communication, she has already knowledge in this field that may be used to obtain marketing work.  As such, the Tribunal does not consider the course will really be of assistance in assisting the applicant to obtain employment or improve her employment prospects in Thailand. 

29. The current course (together with her previously obtained Certificate IV and Diploma in Marketing and Communications) bears some relevance to her past employment as an administrative officer at the bank.  And while the course is relevant to possible future employment, as already noted the Tribunal is concerned about the genuineness of the applicant’s job offer from the bank and the need to under this further course when she has already completed studies in the area of marketing and communications. 

30. With respect to remuneration the applicant can expect to earn, she stated that she expects to earn around 40,000 to 50,000 baht per month plus commission.  She said she has arrived at this figure based on her research of marketing jobs.  This also raises concern about the genuineness of her evidence in relation to the job offer from the bank.  It could realistically be expected that upon an offer being made for employment that remuneration would be discussed.  The fact that she has based the abovementioned figures on researching marketing jobs implies she has not discussed remuneration with the bank.  More importantly, it is unclear on the evidence whether the figures provided by the applicant about expected remuneration are dependent upon the completion of the Advanced Diploma of Marketing and Communications, or whether she could obtain such work and remuneration based on her current qualifications. 

31. The Tribunal notes that the applicant is currently earning $300 to $400 per week as a cleaner and that she is not using her marketing and communication knowledge in employment at present.  She gave no evidence about how much she was paid when she previously worked for the bank in Thailand prior to 2011.

32. Accordingly, the Tribunal is unable to find that the current course will have a significant impact on her remuneration in Thailand.

    IMMIGRATION HISTORY

33. The applicant stated she has never been refused a visa to any other country.  The Tribunal accepts this as there is no evidence in the Department’s file to suggest this not to be the case.

34. The applicant did not raise any other relevant matters to be considered.

35. Having considered the applicant’s circumstances as a whole, including the issues in Direction no. 69, the Tribunal is not satisfied the applicant is a genuine student who intends to stay temporarily in Australia. Accordingly, the applicant does not meet cl.500.212(a).

36. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

37. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Elizabeth Tueno
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.